UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DOUGLAS BOURDON,
Plaintiff
v.
Civil Action No. 15-2241 (CKK)
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, et al.,
Defendants
MEMORANDUM OPINION
(February 16, 2017)
This case arises from the United States Citizenship and Immigration Service (“USCIS”)
West Palm Beach Field Office’s denial of Plaintiff’s petition to classify his wife, an adult citizen
of Vietnam, as his immediate relative for immigration purposes. The USCIS West Palm Beach
Field Office denied Plaintiff’s petition pursuant to the Adam Walsh Child Protection and Safety
Act of 2006 (“Adam Walsh Act” or “AWA”), which prohibits U.S. citizens from filing such
petitions if they have been convicted of certain specified offenses against minors, unless they can
prove that they would pose no risk to the alien-beneficiary of the petition. Plaintiff was
convicted of one of these specified offenses—the possession of child pornography—in 2003, and
the USCIS West Palm Beach Field Office determined that Plaintiff failed to establish that he
qualified for the “no risk” exception to the AWA’s prohibition. Plaintiff contends that the denial
of his petition was unlawful for a variety of reasons. Pending before the Court is Defendants’ [7]
Motion to Dismiss or Change Venue. Defendants ask the Court to dismiss Plaintiff’s Complaint
for lack of jurisdiction and for failure to state a claim or, in the alternative, to transfer this action
to the United States District Court for the Southern District of Florida.
1
Upon consideration of the pleadings, 1 the relevant legal authorities, and the record as a
whole, the Court GRANTS-IN-PART and DENIES-IN-PART WITHOUT PREJUDICE
Defendants’ motion. The Court GRANTS Defendants’ motion to transfer this action to the
Southern District of Florida because venue would have been proper in that District had this
action been brought there originally, and the relevant private and public interest factors weigh in
favor of transfer. Because the Court transfers this action, it will not reach the merits of
Defendants’ motion to dismiss for lack of jurisdiction and for failure to state a claim. Instead,
the Court DENIES that portion of Defendants’ motion WITHOUT PREJUDICE to it being
refiled in the Southern District of Florida, if appropriate. 2
I. BACKGROUND
A. Statutory Background
Immediate relatives of United States citizens, including spouses, receive certain
preferential treatment under U.S. immigration law. See, e.g., 8 U.S.C. § 1151(b)(2)(A)(i)
(stating that the immigration of immediate relatives is not subject to numerical limitations); Pl.’s
Compl. for Declaratory and Injunctive Relief, ECF No. 1, (“Compl.”) at ¶ 21. However, U.S.
1
The Court’s consideration has focused on the following documents:
• Defs.’ Mot. to Dismiss or Change Venue (“Defs.’ Mot.”), ECF No. 7;
• Pl.’s Opp’n to Mot. to Dismiss or Change Venue (“Pl.’s Opp’n”), ECF No. 11; and
• Defs.’ Reply in Support of Mot. to Dismiss or Change Venue (“Defs.’ Reply”), ECF No. 13.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
2
The Court has decided to dismiss this portion of Defendants’ motion without prejudice instead
of holding it in abeyance for the transferee court. After the briefing on this motion was
completed, Defendants filed a notice of supplemental authority regarding a recent opinion from
the Eighth Circuit Court of Appeals that appears to address a number of the issues in this case
and Plaintiff filed a response to that notice. It may be more efficient and helpful to the transferee
court for the parties to file and brief this motion anew, incorporating the most up-to-date case law
and without needing to focus on arguments regarding venue.
2
citizens generally must formally petition the government to recognize their foreign relative as an
“immediate relative” before they can receive such treatment. The procedures for filing such a
petition are set forth in 8 U.S.C. § 1154. The AWA, which Congress passed in 2006, added
language to section 1154 that states that these procedures “shall not apply to a citizen of the
United States who has been convicted of a specified offense against a minor, unless the Secretary
of Homeland Security, in the Secretary’s sole and unreviewable discretion, determines that the
citizen poses no risk to the alien with respect to whom a petition” is filed. 8 U.S.C. §
1154(a)(1)(A)(viii). A “specified offense against a minor” is elsewhere defined to include,
among other things, the “[p]ossession, production, or distribution of child pornography.” 42
U.S.C. § 16911(7)(G).
Plaintiff alleges that the Secretary of Homeland Security has delegated responsibility for
deciding whether a petitioner has proven that he poses “no risk” under the AWA to Department
of Homeland Security (“DHS”) line officers, whose adverse decisions on this issue are not
subject to oversight or appeal. Compl. ¶ 5. Plaintiff further alleges that the DHS requires its line
officers to require the petitioning U.S. citizen to establish that they pose no risk “beyond a
reasonable doubt.” Id.
B. Factual Background
Plaintiff Douglas Bourdon, an American citizen and resident of Stuart, Florida, alleges
that Defendant DHS has wrongfully refused him the opportunity to petition for recognition of his
spousal relationship with his wife, Ms. Thi Thuan Tran. Id. ¶¶ 1, 11. Ms. Tran is a citizen of
Vietnam. Id. ¶ 31. Plaintiff and Ms. Tran were married on May 24, 2008, and on June 18, 2008
Plaintiff submitted a petition requesting that the government recognize Ms. Tran as his
immediate relative. Id. ¶¶ 31-32. On January 15, 2009, Plaintiff and Ms. Tran appeared for an
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interview regarding that petition. Id. ¶ 32. Plaintiff alleges that at that interview he was
informed that he would be prevented from petitioning for recognition of his spouse pursuant to
the AWA because Plaintiff had previously been convicted of a “specified offense against a
minor”—the possession of child pornography—unless Plaintiff was able to satisfy the AWA’s
“no risk” exception. Id.
The USCIS then issued Plaintiff a Request for Evidence (“RFE”) regarding Plaintiff’s
child pornography offense and rehabilitation. Id. ¶ 33. Plaintiff responded to the RFE, providing
an affidavit from Ms. Tran and reports from a social worker and forensic examiner. Id. ¶¶ 33-34.
Despite this evidence, the USCIS West Palm Beach Field Office denied Plaintiff’s petition on
December 4, 2009 based on his child pornography conviction. Id. ¶ 35. That office determined
that Plaintiff had not demonstrated “beyond a reasonable doubt” that he posed no risk to Ms.
Tran. Id.
Plaintiff appealed that decision to the Board of Immigration Appeals (“BIA”) on January
7, 2010. Id. ¶ 36. The BIA subsequently remanded the petition to the USCIS West Palm Beach
Field Office for further development of the record and additional briefing. Id.
Although Plaintiff submitted the requested briefing on August 31, 2012, he had not yet
received a new decision regarding his petition as of March 4, 2014. Id. ¶¶ 37-38. Accordingly,
Plaintiff filed suit at that time in the United States District Court for the Southern District of
Florida, seeking to compel a decision on his petition. Id. ¶ 38. Following additional procedural
maneuvers, the USCIS West Palm Beach Field Office issued a new RFE, and Plaintiff provided
that office with additional information regarding his conviction and rehabilitation. Id. ¶ 39.
Plaintiff submitted additional forensic reports, medical records, social security records, evidence
of employment, and affidavits from Plaintiff, Ms. Tran and members of Ms. Tran’s family. Id.
4
On November 21, 2014, the USCIS West Palm Beach Field Office again denied
Plaintiff’s petition. Id. ¶ 40. Plaintiff alleges that this denial was wrongful for a number of
reasons. First, Plaintiff alleges that the USCIS wrongfully applied a “beyond a reasonable
doubt” standard to its decision that Plaintiff had failed to establish that he qualified for the AWA
“no risk” exception. Id. Second, Plaintiff alleges that USCIS based its denial on risks Plaintiff
might pose not to Ms. Tran, but to “society” at large, or any grandchildren Ms. Tran may have in
the future—considerations Plaintiff claims are outside the scope of the AWA. Id. Third,
Plaintiff alleges that USCIS wrongfully based its denial on the fact that Plaintiff had traveled to
Vietnam and Thailand during the pendency of his petition, which the West Palm Beach Field
Office viewed—incorrectly, in Plaintiff’s eyes—as countries tolerant of child abuse. Id. ¶ 41.
Fourth, Plaintiff alleges that the USCIS wrongfully based its denial on its determination that
certain declarations filed by Ms. Tran’s family members were “self-serving” because the Field
Office incorrectly believed that the declarants stood to benefit from Ms. Tran’s entry into the
country because they themselves would then be able to emigrate from their home countries to the
United States. Id. ¶ 43. Fifth, Plaintiff alleges that the West Palm Beach Field Office ignored
much of the evidence Plaintiff had submitted to establish that he posed no risk to Ms. Tran. Id. ¶
44. Plaintiff appealed the denial to the BIA, but the BIA dismissed Plaintiff’s appeal on July 21,
2015. Id. ¶¶ 45-46.
Based on the preceding facts, Plaintiff has asserted six causes of action. Id. ¶¶ 49-86.
Plaintiff claims that Defendants have impermissibly applied the AWA retroactively, have
exceeded the scope of Congress’ enumerated powers, and have violated the Administrative
Procedure Act (“APA”) and the Fifth Amendment to the United States Constitution. Id. As
relief, among other things, Plaintiff requests that this Court vacate the USCIS West Palm Beach
5
Field Office’s decision and issue a mandatory injunction requiring Defendants to approve
Plaintiff’s visa petition on behalf of Ms. Tran. Id. at 25-26.
II. LEGAL STANDARD
Pursuant to 28 U.S.C. § 1404(a), a court may transfer a case to any other district where it
might have been brought “[f]or the convenience of parties and witnesses, in the interest of
justice.” The party moving to transfer venue bears the burden of establishing that convenience
and the interests of justice weigh in favor of transfer. See Int’l Bhd. of Painters & Allied Trades
Union v. Best Painting and Sandblasting Co., Inc., 621 F. Supp. 906, 907 (D.D.C. 1985).
Section 1404(a) vests discretion in the district court to conduct an “individualized, case-by-case”
analysis of whether transfer is appropriate. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29
(1988).
III. DISCUSSION
As discussed above, Defendants’ motion seeks two alternative forms of relief. First,
Defendants ask the Court to transfer this action to the United States District Court for the
Southern District of Florida. Second, if the Court does not transfer this action, Defendants ask
the Court to dismiss Plaintiff’s Complaint for lack of jurisdiction and for failure to state a claim.
Because the Court will grant Defendants’ motion to transfer venue, it will not reach the merits of
Defendants’ motion to dismiss.
A. Defendants’ Motion to Transfer Venue
Defendants make two distinct contentions regarding venue in their motion. First,
Defendants contend that transfer is required because venue is not proper in the District of
Columbia. Second, Defendants contend that even if venue is technically proper in the District of
Columbia, this Court should exercise its discretion to transfer this action to the Southern District
6
of Florida pursuant to 28 U.S.C. § 1404(a). The Court rejects Defendants’ first contention, but
agrees that this case should be transferred under section § 1404(a) in the interest of justice.
1. Venue is Proper in the District of Columbia
The Court first rejects Defendants’ assertion that there is no basis for venue in this Court.
In actions where, as here, defendants include agencies of the United States, or officers or
employees of the United States or its agencies, venue is proper “in any judicial district in which
(A) a defendant in the action resides, (B) a substantial part of the events or omissions giving rise
to the claim occurred, or a substantial part of property that is the subject of the action is situated,
or (C) the plaintiff resides if no real property is involved in the action.” 28 U.S.C. § 1391(e)(1).
With respect to the first basis for venue, “[t]he residence of an official defendant is determined
on the basis of the official residence of the federal officer or agency.” Franz v. United States,
591 F. Supp. 374, 377 (D.D.C. 1984) (citing Lamont v. Haig, 590 F.2d 1124, 1128 n.19 (D.C.
Cir. 1978) (“What controls is the official residence of the federal defendant where the official
duties are performed”)). The official residences of a number of the Defendants in this action—
the DHS, the Secretary of the DHS, the Attorney General of the United States, USCIS, and the
Director of the USCIS—are all within the District of Columbia. Defendants may rightfully
argue that the events or omissions giving rise to Plaintiff’s claims occurred in Florida, but that
does not detract from the plain statutory basis for venue in the District of Columbia based on the
residence of several of the Defendants. Venue is technically valid in this District.
2. This Action Should be Transferred to the Southern District of Florida
Although venue is technically valid in this District, the Court may nonetheless exercise
its discretion to transfer this action to another District Court in the interest of justice pursuant to
28 U.S.C. § 1404(a). Determining whether transfer is appropriate pursuant to section 1404(a)
7
calls for a two-part inquiry. First, the Court must ask whether the transferee forum is one where
the action “might have been brought” originally. § 1404(a). Second, the Court must consider
whether private and public interest factors weigh in favor of transfer. Lentz v. Eli Lilly & Co.,
464 F. Supp. 2d 35, 36-37 (D.D.C. 2006). In this case, the Court concludes that this action could
have been brought in the Southern District of Florida originally, and that the relevant private and
public interest factors weigh in favor of transferring this action to that District now.
a. Plaintiff Could Have Brought this Action in the Southern District of Florida
Venue would have been proper in the Southern District of Florida if this action had been
brought there originally. As explained above with respect to the District of Columbia, venue
would be proper in this case “in any judicial district in which (A) a defendant in the action
resides, (B) a substantial part of the events or omissions giving rise to the claim occurred . . . or
(C) the plaintiff resides . . .” 28 U.S.C. § 1391(e)(1). Multiple circumstances are present here
with respect to the Southern District of Florida. Both Plaintiff and Defendant Laura Castillo
reside in that District and, as will be discussed in further detail below, a substantial part—if not
all—of the events or omissions giving rise to Plaintiff’s claims occurred there. Accordingly, this
action could have been brought originally in the Southern District of Florida.
b. The Private and Public Interest Factors Weigh in Favor of Transfer
The second step of the Court’s analysis is determining whether the relevant private and
public interest factors weigh in favor of transferring the action. The Court finds that both sets of
factors weigh in favor of transfer in this case because Plaintiff’s claims arose in the Southern
District of Florida and this is predominantly a local controversy that should be decided in that
District.
8
i. Private Interest Factors
In considering whether to transfer an action, the Court considers the following private
interest factors: “(1) the plaintiffs’ choice of forum, unless the balance of convenience is strongly
in favor of the defendants; (2) the defendants’ choice of forum; (3) whether the claim arose
elsewhere; (4) the convenience of the parties; (5) the convenience of the witnesses of the plaintiff
and defendant, but only to the extent that the witnesses may actually be unavailable for trial in
one of the fora; and (6) the ease of access to sources of proof.” Greater Yellowstone Coalition v.
Bosworth, 180 F. Supp. 2d 124, 127 (D.D.C. 2001).
The balance of these factors weighs in favor of transfer. First, Plaintiff’s choice of forum
is afforded minimal weight in this case. Although the “plaintiff’s choice of forum is ordinarily
entitled to deference,” that choice is conferred considerably less deference when it is not the
plaintiff’s home forum, has few factual ties to the case at hand, and defendants seek to transfer to
plaintiff’s home forum. Nat’l Ass’n of Home Builders v. U.S. Envt’l Prot. Agency, 675 F. Supp.
2d 173, 179-80 (D.D.C. 2009); New Hope Power Co. v. U.S. Army Corps of Engineers, 724 F.
Supp. 2d 90, 96 (D.D.C. 2010) (“Because the plaintiffs did not bring this claim in their home
forum, this case lacks meaningful ties to the District of Columbia, and defendants seek transfer
to the plaintiffs’ home forum, the plaintiffs’ choice of forum will be accorded little deference and
the choice of forum factors favor transfer.”); Trout Unlimited v. U.S. Dep’t of Agric., 944 F.
Supp. 13, 17 (D.D.C. 1996) (same). Here, Plaintiff resides in the Southern District of Florida,
where Defendants seek to transfer this action, and all of the events relating to Plaintiff’s petition
occurred in that District. This factor accordingly provides little if any support for maintaining
venue in the District of Columbia.
9
Second, and of predominant importance in this case, Plaintiff’s claims arose in the
Southern District of Florida. Cases challenging the actions of local USCIS offices are
frequently, and appropriately, transferred to the venue encompassing those local offices for this
reason. See Aftab v. Gonzalez, 597 F. Supp. 2d 76, 80 (D.D.C. 2009) (transferring action relating
to application for adjustment of status processed in a Texas USCIS office to the U.S. District
Court for the Northern District of Texas, noting that “[w]hile the claim arguably arose in more
than one district, the claim involves identifiable relevant events occurring in the transferee
district and virtually none in this district.”); Al-Ahmed v. Chertoff, 564 F. Supp. 2d 16, 19
(D.D.C. 2008) (transferring action relating to application for adjustment of status, travel
documents and employment authorization pending in a Virginia USCIS office to the U.S.
District Court for the Eastern District of Virginia because “the relevant events giving rise to
plaintiff’s claim have occurred or will occur in that district” and although “plaintiff names as
defendants certain high-level government officials with offices in this district, these individuals
are not the ones who will adjudicate his applications”); Abusadeh v. Chertoff, No. 6-CV-2014,
2007 WL 2111036, at *6 (D.D.C. July 23, 2007) (transferring action relating to application for
naturalization processed in a Texas USCIS office to the U.S. District Court for the Southern
District of Texas because “Plaintiff, a resident of the Southern District of Texas, applied for
naturalization in that District, was interviewed in connection with his application in that District,
and has since communicated with the USCIS office in that District regarding his application”).
The USCIS West Palm Beach Field Office, located within the Southern District of
Florida, handled the adjudication of Plaintiff’s petition. That office issued the relevant
documents in this case, including the RFEs and the denial of Plaintiff’s petition that is the basis
of Plaintiff’s claims. Plaintiff sent his responses to those RFEs to that office and attended
10
interviews there. The alleged errors underlying the denial of Plaintiff’s petition were all
committed by the West Palm Beach Field Office in the Southern District of Florida. When
Plaintiff was aggrieved by that office’s failure to issue a decision on his petition, he filed a
previous lawsuit about this in the United States District Court for the Southern District of
Florida. In short, Plaintiff does not dispute that the entire petition, denial and appeal process
described above has all occurred within the Southern District of Florida.
Instead, Plaintiff attempts to downplay the importance of these events to his claims.
Despite the fact that nearly all of the events described in Plaintiff’s Complaint occurred in the
Southern District of Florida, Plaintiff describes his claims as if they were entirely focused on
national policies that emanated from agency headquarters in the District of Columbia.
Specifically, Plaintiff claims that the legal errors committed by the USCIS West Palm Beach
Field Office are in line with nationally applicable policy memos disseminated from USCIS
headquarters in the District of Columbia.
The Court is mindful in considering this type of argument that “[c]ourts in this circuit
must examine challenges to personal jurisdiction and venue carefully to guard against the danger
that a plaintiff might manufacture venue in the District of Columbia. By naming high
government officials as defendants, a plaintiff could bring a suit here that properly should be
pursued elsewhere.” Cameron v. Thornburgh, 983 F.2d 253, 256 (D.C. Cir. 1993). Having
examined the challenge to venue in this case carefully, the Court finds Plaintiff’s argument
unpersuasive for two reasons. First, the policy memos Plaintiff relies on are irrelevant to many
of the errors Plaintiff challenges in this case. Plaintiff complains that the USCIS West Palm
Beach Field Office failed to consider evidence Plaintiff submitted in support of his petition,
mischaracterized that evidence, based its decision on incorrect interpretations of United States
11
immigration laws and wrongfully relied on mistaken assumptions about the circumstances in
certain foreign countries which Plaintiff was not given the opportunity to rebut. Plaintiff does
not explain how any of these alleged errors were dictated by, or even in line with, any
nationwide policy or anything else emanating from the District of Columbia. Venue is clearly
more appropriate in the Southern District of Florida for these claims, which make up the majority
and gravamen of Plaintiff’s complaint. 3
Second, even with respect to the aspects of the denial of Plaintiff’s petition that were
allegedly in line with certain nationally applicable USCIS policy memos, the connection between
the events at issue in this case and the District of Columbia is still tenuous at best. The gravamen
of Plaintiff’s Complaint is that errors were committed during the adjudication of Plaintiff’s
petition, which took place entirely within the Southern District of Florida. Although aspects of
this adjudication may have been influenced by these policy memos, the Court finds this
connection insufficient to support venue in this District: where, as here, “‘the only real
connection [the] lawsuit has to the District of Columbia is that a federal agency headquartered
here is charged with generally regulating and overseeing the [administrative] process, venue is
not appropriate in the District of Columbia.’” Al-Ahmed, 564 F. Supp. 2d at 19 (quoting
Abusadeh, No. 2007 WL 2111036, at *6-7).
In this respect, the Court agrees with Judge Thomas F. Hogan, who, in an extremely
similar case, recently rejected the same argument put forth by Plaintiff here. Like Plaintiff in this
3
For this reason, the circumstances in Ravulapalli v. Napolitano, 773 F. Supp. 2d 41 (D.D.C.
2011), a case relied on by Plaintiff, were different than those in this case. In that case, the Court
exercised its discretion to deny a motion to transfer where “Plaintiffs’ claims focus[ed] primarily
on the policies issued from USCIS headquarters that apply to all USCIS field offices.” Id. at 56
(emphasis added). The Court concludes that Plaintiff’s claims in this case do not focus primarily
on national policies.
12
case, the plaintiffs in Pearson v. Rodriguez, 174 F. Supp. 3d 210 (D.D.C. 2016), also challenged
the USCIS’s denial of a petition for immediate relative status for a noncitizen spouse under the
AWA. Id. at 211. Plaintiffs in that case brought suit in the District of Columbia even though
they resided in the Eastern District of Virginia and their petition was adjudicated in that District.
Id. at 213. Judge Hogan transferred the action to the Eastern District of Virginia because
although plaintiffs had named certain high level officials in the District of Columbia as
defendants, “the Complaint d[id] not suggest that these officials had an active or significant role
in the matter and, at bottom, plaintiffs challenge[d] an adverse agency decision made by the
USCIS Washington Field Office in Fairfax, Virginia.” Id. at 213-14. Plaintiffs in Pearson, like
the Plaintiff in this case, also argued that “the USCIS policy underlying the agency’s decision
was issued by a senior official at USCIS headquarters,” but Judge Hogan rejected this argument,
holding that “even if true, such ‘attenuated or insignificant involvement by an official in the
District of Columbia does not support venue here.’” Id. at 213 (quoting Aftab, 597 F. Supp. 2d at
82); see also Sierra Club v. Flowers, 276 F. Supp. 2d 62, 67-68 (D.D.C. 2003) (finding that
private interest factors favored transfer where there was no “evidence that federal officials in this
forum played ‘an active or significant role’ in the decision to issue the permits” being
challenged) (quoting Airport Working Grp. of Orange Cty., Inc. v. U.S. Dep’t of Def., 226 F.
Supp. 2d 227, 230 (D.D.C. 2002)). The Court finds this reasoning persuasive and equally
applicable to this case. Despite Plaintiff’s best attempts to argue otherwise, it is clear that the
claims in this case arose in the Southern District of Florida.
The remaining private interest factors are of less importance in this case, but the Court
notes that they are either neutral or also support transferring this case to the Southern District of
Florida. The Defendants’ choice of forum is the Southern District of Florida. No showing has
13
been made that any potential witnesses would not be available to testify in either of the two
competing forums and accordingly the Court need not consider the convenience of witnesses
factor. Greater Yellowstone Coalition, 180 F. Supp. 2d at 127. Even if the Court were to
consider this factor, Plaintiff’s argument that it favors retaining venue in the District of Columbia
because this forum is more convenient for “the policymakers who drafted” the policies at issue,
is unavailing. To the extent any witnesses will be necessary in this case at all—given that it is
brought in part under the APA—a cursory review of Plaintiff’s Complaint shows that far more
witnesses would be located in Florida than in the District of Columbia. Additionally, potential
sources of proof—to the extent any are necessary in this case—would appear to be easier to
access in Florida, where the events at issue took place. If this case is eventually adjudicated
solely based on an administrative record, that record presumably resides in the Southern District
of Florida, where the adjudication of Plaintiff’s petition occurred, not in the District of
Columbia. See Sierra Club, 276 F. Supp. 2d at 69 (“The location of the administrative record . . .
carries some weight in transfer determinations.”).
In sum, the balance of the private interest factors weighs in favor of transfer.
ii. Public Interest Factors
The public interest factors also weigh in favor of transfer. These factors include “(1) the
transferee’s familiarity with the governing laws and the pendency of related actions in the
transferee's forum; (2) the relative congestion of the calendars of the potential transferee and
transferor courts; and (3) the local interest in deciding local controversies at home.” Greater
Yellowstone Coalition, 180 F. Supp. 2d at 128.
The interest in deciding local controversies at home is the public interest factor of most
importance in this case. The parties dispute whether this case presents a local controversy. “To
14
determine whether a controversy is local in nature, courts consider a wide variety of factors,
including: where the challenged decision was made; whether the decision directly affected the
citizens of the transferee state; the location of the controversy, whether the issue involved federal
constitutional issues rather than local property laws or statutes; whether the controversy involved
issues of state law, whether the controversy has some national significance; and whether there
was personal involvement by a District of Columbia official.” Otay Mesa Prop. L.P. v. U.S.
Dep’t of Interior, 584 F. Supp. 2d 122, 126 (D.D.C. 2008).
For many of the same reasons discussed above, the Court concludes that this case is
predominately a local controversy that should be decided in the Southern District of Florida.
Plaintiff resides within the Southern District of Florida and Plaintiff’s petition was adjudicated
and denied by the USCIS West Palm Beach Field Office located in that District. See
Mohammadi v. Scharfen, 609 F. Supp. 2d 14, 19 (D.D.C. 2009) (claim relating to application for
naturalization was a local controversy for Maryland because “the plaintiff resides in Maryland
and has conducted both his fingerprinting and his application interview at USCIS offices located
in Maryland” and “the plaintiff’s application for naturalization is currently pending before the
Baltimore USCIS office and officials there are responsible for adjudicating his application”);
Sierra Club, 276 F. Supp. 2d at 71 (challenge to permits issued in Florida was a local
controversy for Florida despite the fact “that the controversy ha[d] a national aspect,” in part
because “the decision-making process up to and including the final record of decision took place
not in Washington but in Florida”). Additional facts point toward the local nature of this
controversy. Plaintiff asks this Court to compel action—the approval of Plaintiff’s petition for
his wife—that would occur in Florida. See Abusadeh, 2007 WL 2111036, at *6 (granting motion
to transfer in part because “the action that Plaintiff seeks this Court to compel is one that will
15
occur not in the District of Columbia, but rather in Houston, Texas.”). And, although it is not
completely clear, presumably Plaintiff’s wife would reside with Plaintiff in the Southern District
of Florida if granted a visa.
Although some of the errors Plaintiff alleges that the USCIS West Palm Beach Field
Office committed in denying his petition are in line with nationally applicable policies laid out in
USCIS policy memoranda, there certainly does not appear to have been any “personal
involvement by a District of Columbia official” in this case. Otay Mesa Prop. L.P., 584 F. Supp.
2d at 126. It would also be a stretch to conclude that this case is one of “national significance,”
Pl.’s Opp’n at 18, simply because of these memoranda. This is a local controversy, and the
Southern District of Florida’s interest in deciding it locally weighs in favor of transferring this
case.
The remaining public interest factors are of less relevance in this case, but if anything
they also point toward transfer. This case is governed by federal laws, of which both this District
and the Southern District of Florida are equally familiar, and the parties have not presented the
Court with any evidence as to the relative congestion of the calendars of the two Districts.
However, the Court notes that the fact that the previous lawsuit related to this petition was filed
in the Southern District of Florida indicates that venue in that District may also be appropriate
for this action.
In sum, the Court concludes that this case could have originally been brought in the
Southern District of Florida, and that the balance of the private and public interest factors weigh
in favor of transferring this action to that District. Accordingly, the Court will exercise its
discretion under 28 U.S.C. § 1404(a) to transfer this action to the Southern District of Florida.
16
B. Defendants’ Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim
Defendants have also moved this Court, in the alternative, to dismiss Plaintiff’s
Complaint for lack of subject matter jurisdiction and for failure to state a claim. Defs.’ Mot. at
10-27. Because the Court grants Defendants’ motion to transfer venue, it will not address the
merits of Defendants’ motion to dismiss on these grounds. Defendants’ motion in these respects
will be denied without prejudice to it being refiled, if appropriate, in the United States District
Court for the Southern District of Florida.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion to transfer this action
to the United States District Court for the Southern District of Florida and DENIES WITHOUT
PREJUDICE Defendants’ motion to dismiss Plaintiff’s Complaint for lack of jurisdiction and
failure to state a claim. An appropriate order accompanies this Memorandum Opinion.
Dated: February 16, 2017
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
17
Bourdon v. United States Department of Homeland Security
Court: District Court, District of Columbia
Date filed: 2017-02-16
Citations: 235 F. Supp. 3d 298
Copy CitationsCombined Opinion